DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/2765)

DELTA PTY LTD AND CFMEU CIVIL CONSTRUCTION UNION COLLECTIVE AGREEMENT 2018 - 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	SYDNEY, 22 AUGUST 2019

Application for approval of the Delta Pty Ltd and CFMEU Civil Construction Union Collective Agreement 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Delta Pty Ltd and CFMEU Civil Construction Union Collective Agreement 2018 - 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Maritime, Mining and Energy Union. The agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 22 August 2019 and, in accordance with s.54, will operate from 29 August 2019. The nominal expiry date of the Agreement is 2 July 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Delta Pty Ltd, sought approval for a collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) Civil Construction Union for the period 2018 to 2021. The matter was brought before the Fair Work Commission. The primary dispute revolved around the validity and enforceability of certain provisions within the proposed agreement, particularly those concerning pay rates and conditions for employees.

The legal issues before the Commission included whether the provisions of the agreement were consistent with the Fair Work Act 2009, and if they complied with the relevant national workplace laws. Key concerns were raised about the fairness and reasonableness of the proposed pay rates and the overall alignment of the agreement with broader industrial standards and principles. The Commission needed to assess whether the agreement met the criteria for being a "better off overall test" (BOOT) agreement, ensuring that employees were not worse off than they would be under the applicable awards or enterprise agreements.

After considering the submissions from both parties, the Fair Work Commission found that the proposed agreement generally complied with the Fair Work Act and met the requirements for approval. The Commission noted that while some provisions were contentious, they did not significantly detract from the overall fairness and reasonableness of the agreement. The pay rates and conditions, while not universally accepted as the most favourable, were deemed to provide employees with a better outcome overall compared to the applicable awards. Consequently, the Commission approved the collective agreement subject to the specified terms and conditions.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established